SECTION 143A NI ACT (INTERIM COMPENSATION) HAS NO RETROSPECTIVE EFFECT, SECTION 148 HAS: PUNJAB & HARYANA HC [READ JUDGMENT]
Section 143A NI Act
(Interim Compensation) Has No Retrospective Effect, Section 148 Has: Punjab
& Haryana HC [Read Judgment]
"At the stage of trial, the provision of Section 143-A
of the Act has created a new 'obligation' against the accused, which was not
contemplated by the existing law and which created a substantive liability upon
him, whereas the provision of Section 148 of the Act only reiterated; and to
some extent modified in favour of the appellant, the procedure of recovery
already existing in the statute book."
The
Punjab and Haryana High Court has held that the Section 143A of the Negotiable
Instruments Act has no retrospective effect whereas the Section 148 will apply
to the pending appeals pending on date of enforcement of this provision.
Justice Rajbir
Sehrawat
observed that the Section 143-A of the Act has created a new 'obligation'
against the accused, which was not contemplated by the existing law and which
created a substantive liability upon him. But, the Section 148 of the Act only
reiterated; and to some extent modified in favour of the accused, the procedure
of recovery already existing in the statute book.
The
2018 amendment introduced two provisions to the Negotiable Instruments Act. One
is Section 143-A of the Act which gives power to the Trial Court to direct the
accused to 'pay' an interim compensation which cannot be more than 20% of the
'cheque amount'. Another is Section 148 of the Act which empowers the Appellate
Court to direct the accused/appellant to 'deposit' minimum of 20% of 'fine' or
'compensation' awarded by the Trial Court.
Under
challenge in the batch of appeals, were the orders of the Courts (Trial and
Appellate Courts) which invoked powers conferred under Section 143-A of the Act
during the trial, and under Section 148 of the Act pending appeal.
On Section 143A, the court observed that it casts a substantive obligation upon the accused and thereby affect the substantive right of the accused. It observed:
On Section 143A, the court observed that it casts a substantive obligation upon the accused and thereby affect the substantive right of the accused. It observed:
Since the amended provision provides
for enforcement of recovery of interim compensation by way of coercive
procedure, it is nothing but an obligation imposed upon the accused. Section 3
of the Specific Relief Act has clarified the meaning of term 'obligation' by
defining that any duty enforceable under law is an obligation. As per General
Clauses Act, this definition has to be read in all Central Acts unless defined
otherwise in the relevant Act. Such an 'obligation' having consequences qua the
property rights of the accused cannot; but be treated; as substantive provision
effecting his substantive right by casting a substantive obligation upon him,
to make the payment of money; and if not paid, making him subject to legal
deprivement/disability qua his properties. Therefore, it has to be held that
Section 143-A of the Act cast a substantive obligation upon the accused and
thereby effect the substantive right of the accused. Since the Amendment Act
has not made the provision applicable retrospectively, specifically, to pending
cases, hence, it cannot be applied retrospectively, to pending cases; which
arose from the default of the accused which has taken place before coming into
force of this provision.
The
bench also explained another reason for holding Section 143A prospective. It
said:
By virtue of sheer
amount of 'interim compensation', which may work out in a particular case in
crores of rupees, for a person who is not having means of more than few lakhs
of rupees, the consequence under this Section can be totally devastating,
irrecoverable and irreparable. Therefore, this provision can at the best be
applicable prospectively where prospective accused would be aware of such
consequences in advance, and it cannot be applied to the cases where the trial
has already commenced qua a default which was suffered; when this provision was
not in-existence.
On
Section 148, the court said that the procedure of recovery of fine or
compensation from a convict of pending appeal already existed in CR.P.C; before
advent of the provision as contained in Section 148 of the Act. It gives more
breathing space to the convict/appellant; as compared to the other procedures
of recovery, as contemplated under Sections 421 and 424 of Cr.P.C, which is for
more onerous in terms of time limit and the consequences, the bench said. It
added:
"Since the provisions for recovery of fine or compensation from the appellant/convict already existed in the existing procedure relating to the recovery, therefore, the provision introduced vide Section 148 of the Act; which relates only to recovery of amount partly, as interim measure, has to be treated purely procedural only, which is otherwise also beneficial for the appellant as compared to the pre-existing provisions. Hence it has to be held that provision of Section 148 of the Act shall govern all the appeals pending on date of enforcement of this provision or filed thereafter.
"Since the provisions for recovery of fine or compensation from the appellant/convict already existed in the existing procedure relating to the recovery, therefore, the provision introduced vide Section 148 of the Act; which relates only to recovery of amount partly, as interim measure, has to be treated purely procedural only, which is otherwise also beneficial for the appellant as compared to the pre-existing provisions. Hence it has to be held that provision of Section 148 of the Act shall govern all the appeals pending on date of enforcement of this provision or filed thereafter.
MANISHANKAR
CEO-ANTI-CORRUPTION AND HUMAN RIGHTS MOVEMENT®-CHENNAI
Email: anticorruption.org2007@
Mobile: 91 9087856137
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